A statute passed by the legislature of the state of Minnesota, and known as the Minnesota reciprocal demurrage law, became effective on July 1, 1907. Laws of Minnesota, 1907, chap. 23.

The law, among other things, made it the duty of a railway company subject to its provisions, on demand by a shipper, to furnish cars for transportation of freight, at terminal points on its line of road in Minnesota, within forty-eight hours, and at intermediate points within seventy-two hours, after such demand, Sundays and legal holidays excepted. For each day's delay in furnishing cars when so demandedexcept when prevented by strikes, public calamities, accident, or any cause not within the power of the railroad to preventthe defaulting company was made liable to pay to the shipper $1 per car, together with the damages sustained and a reasonable attorney's fee.

Alleging that, in respect of delays in the deliveries to it of fourteen freight cars, pursuant to eight applications made for such cars between September 19, 1907, and October 22, 1907, the 1st section of the act in question had been violated, the Hardwick Farmers Elevator Company, defendant in error here, commenced this action in a district court of Minnesota to recover from the railway company, plaintiff in error here, penalties aggregating $218 and an attorney's fee of $50, together with the costs and disbursements of the action. As a defense, the railway company set up that the cars in question were demanded for the purpose of interstate traffic, and that the delays complained of were occasioned solely by an unusual and unprecedented congestion of traffic and a consequent scarcity of cars, arising from their use in moving traffic and commerce between the states, and that such delays therefore arose from causes not within the control and power of the company. It was also claimed that if the statute in question embraced interstate commerce, and was applied to the requisitions for cars referred to in the complaint, it would be repugnant to the commerce clause and to the due process and equal protection clauses of the Constitution of the United States. The action was tried to a jury. The trial judge refused to give instructions asked for by the railway company, embodying the constitutional objections made in its answer. A verdict was returned for the plaintiff for the amount claimed, including an attorney's fee; and a judgment entered on the verdict was affirmed by the supreme court of the state. 110 Minn. 25, 124 N. W. 819, 19 Ann. Cas. 1088.

Mr. Chief Justice White, after making the foregoing statement, delivered the opinion of the court:

The argument at bar has been primarily concerned with the question of the validity of the Minnesota statute, considered as having been enacted in the exercise of a power assumed to exist to legislate reasonably in the absence of action by Congress on the subject of the delivery when called for, of cars to be used in interstate traffic. Thus, counsel for the defendant in error urges the correctness of the action of the supreme court of Minnesota in sustaining the statute, upon the hypothesis that Congress had not legislated on the subject, and that the act was a reasonable exertion of the power of the state. On the contrary, on behalf of the railroad company it is insisted that even upon the assumption that the state had power to deal with the subject for which the statute provides, in the absence of legislation by Congress, the enactment is nevertheless void, since it but expresses a policy which by penalization, fines, and forfeitures will substitute for a free and unrestrained flow of commerce a service favoring a particular locality and shippers within the confines of one state, to the disadvantage of others. We are not, however, called upon to test the merits of these conflicting contentions, since we are of opinion that by the act of June 29, 1906, known as the Hepburn act 34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1911, p. 1288, amendatory of the act to regulate commerce, Congress has legislated concerning the deliveries of cars in interstate commerce by carriers subject to the act.

In the original act 24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. Supp. 1911, p. 1284 to regulate commerce the term 'transportation' was declared to embrace all instrumentalities of shipment or carriage. By the Hepburn act it was declared that the term 'transportation' (italics ours) 'shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto.' § 1.

The purpose of Congress to specifically impose a duty upon a carrier in respect to the furnishing of cars for interstate traffic is, of course, by these provisions clearly declared. That Congress was specially concerning itself with that subject is further shown by a proviso inserted to supplement § 1 of the original act, imposing the duty under certain circumstances to furnish switch connections for interstate traffic, whereby it is specifically declared that the common carrier making such connections 'shall furnish cars for the movement of such traffic to the best of its ability, without discrimination in favor of or against any such shipper.' Not only is there then a specific duty imposed to furnish cars for interstate traffic upon reasonable request therefor, but other applicable section of the act to regulate commerce give remedies for the violation of that duty. Thus, by § 8 it is provided 'that in case any common carrier subject to the provisions of this act . . . shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.' Further, by § 9 an election is given to either make complaint to the Interstate Commerce Commission or to bring, in a designated court, an action for the recovery of damages; and by § 10 it is made a criminal offense for an employee of a corporation carrier to 'wilfully omit or fail to do any act, matter, or thing in this act required to be done.'

As legislation concerning the delivery of cars for the carriage of interstate traffic was clearly a matter of interstate commerce regulation, even if such subject was embraced within that class of powers concerning which the state had a right to exert its authority in the absence of legislation by Congress, it must follow, in consequence of the action of Congress to which we have referred, that the power of the state over the subject-matter ceased to exist from the moment that Congress exerted its paramount and all-embracing authority over the subject. We say this because the elementary and long-settled doctrine is that there can be no divided authority over interstate commerce, and that the regulations of Congress on that subject are supreme. It results, therefore, that in a case where, from the particular nature of certain subjects, the state may exert authority until Congress acts, under the assumption that Congress, by inaction, has tacitly authorized it to do so, action by Congress destroys the possibility of such assumption, since such action, when exerted, covers the whole field, and renders the state impotent to deal with a subject over which it had no inherent, but only permissive, power. Southern R. Co. v. Reid,
222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140.

The judgment of the Supreme Court of Minnesota must therefore be reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

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Rev. Laws Supp. 1909, §§ 2023-1 to 2023-13.

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